Blackwell v. Barnett

CourtSupreme Court of Texas
Writing for the CourtBONNER
Citation52 Tex. 326
PartiesJ. W. H. AND MARTHA BLACKWELL v. J. W. BARNETT ET AL.
Decision Date19 December 1879

52 Tex. 326

J. W. H. AND MARTHA BLACKWELL
v.
J. W. BARNETT ET AL.

Supreme Court of Texas.

Dec. 19, 1879.



[52 Tex. 327]

APPEAL from Parker. Tried below before the Hon. A. J. Hood.

On January 13, 1874, the appellants executed and delivered to the appellee Nathan Watson their promissory note, due twelve months after date, for the sum of $500, in gold, drawing interest at the rate of two and one-half per cent. per month from date. On the same day, to secure its payment, they executed and delivered to appellee J. W. Barnett a deed of trust upon their homestead. The deed of trust was in the usual form, and authorized the trustee to sell the homestead at the request of the holder of the note, the sale to be made as required by the law of the State regarding sales of real estate under execution.

On April 19, 1875, appellants paid Watson $100, in gold, on the note. On January 4, 1879, Barnett posted notice at the court-house door, in the town of Weatherford, that he would sell the property described in the deed of trust on February 4, 1879, that being the first Tuesday in February, 1879. On January 13, 1879, four years from the execution, the note expired, it having been, as above stated, executed on January 13, 1874, and being due and payable twelve months after date.

On January 24, 1879, the appellants filed their petition in the District Court of Parker county for a writ of injunction, which was granted by the judge, in vacation, enjoining Barnett from selling. They alleged that they were married; that the estate sought to be sold was their homestead; that the notice of sale was not sufficient in law; that it did not give a true description of the land to be sold; that the notice did not state for what purpose the land was to be sold, nor did it give the name of the beneficiary in the trust, nor at whose request the

[52 Tex. 328]

sale was to be made; that the notice did not state for what amount of money due the property was to be sold.

In their trial amendment, the appellants alleged that if the notice of sale showed, by reference to the records of Parker county, any amount to be due, the amount thus shown was not the true amount; that a less amount was due than was shown by the records; that the records showed that the sum of $1,235 was due on the note, when, as in truth, there was only $1,135 due; that the appellants never have been absent from the State; that the note executed to appellee Watson by appellants was barred by the statute of limitations; that no suit had been instituted upon the same for four years next succeeding the maturity thereof. Appellants asked that Barnett be enjoined from selling. Subsequently they made him a party, and asked that the note be adjudged a stale demand. The Hon. A. J. Hood having been of counsel for appellants, E. P. Nicholson, Esq., was, by agreement of counsel, selected as special judge. After overruling a motion to quash the injunction, he sustained a motion to dismiss the petition. The appellants, after a motion for a new trial was overruled, appealed.

McCall & McCall, for appellants.


I. The court erred in sustaining the motion to dissolve the injunction and to dismiss plaintiffs' bill for injunction, because the petition showed that the advertisement of sale did not give a correct description of the land to be sold, nor did it give the name of the beneficiary, nor at whose request the land was to be sold, nor did the notice give the amount due by the appellants on the note. (Paschal's Dig., art. 3776; Howard v. North, 5 Tex., 302.) As to how a trust with power of sale should be executed, see 2 Perry on Trusts, sec. 602 q; as to what must be stated in the notice, see 2 Perry on Trusts, secs. 602 q,i 602 is.

II. If it should be asserted that by reference to the records of Parker county the amount due upon the note could be ascertained, then we say that the petition and trial amendment

[52 Tex. 329]

showed, and the answer admitted, that $100 had been paid on the note. Hence any amount the notice stated--if it stated any by reference to the records--to be due, was a false and untrue amount, and the notice was therefore insufficient.

The question in this case is not whether the parties could set aside the sale on account of irregularities after the same was made, nor does the question of the rights of a purchaser arise in this matter. It is a question between the parties to the transactions themselves. Now, it is true that our statute regarding advertisements does not prescribe any form of notice; but the question is, would an advertisement of a sheriff that did not state the name of the plaintiff in the suit or the amount due, or if it state an amount which is untrue, would the sale, on motion or injunction, be set aside? (Rorer on Jud. Sales, secs. 721, 732.)

III. The court erred in sustaining the motion to dismiss plaintiff's petition for that the petition showed and alleged that the note sued on was, at and before the bill for injunction was filed, barred by limitation, and that therefore the lien on plaintiff's homestead was also barred and rendered null and void in effect. (Paschal's Dig., arts. 4604, 4617; Buchanan v. Monroe, 22 Tex., 541;Wright v. Henderson, 12 Tex., 44;Given's Administrator v. Davenport, 8 Tex., 451;Ross v. Mitchell, 28 Tex., 154;Duty v. Graham, 12 Tex., 437;Eborn v. Cannon's Administrators, 32 Tex., 244;Perkins v. Sterne, 23 Tex., 561;Maddox v. Humphries, 30 Tex., 496;Tyson v. Britton, 6 Tex., 222;Chevallier v. Durst, 6 Tex., 239;Ellett v. Moore, 6 Tex., 245;Smith v. Kinney's Executors, 33 Tex., 284;Williams v. Durst's Administratrix, 35 Tex., 421;Gautier v. Franklin, 1 Tex., 732;Ayres v. Cayce, 10 Tex., 109; Story on Constr. of Laws, 482; Price v. Luter, 14 Tex., 6.)

We would remark to the court, that the opinions above cited establish the principle that a mortgage or deed of...

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14 practice notes
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...the right of action on the debt secured thereby is barred. Fievel v. Zuber, 67 Tex. 43, 3 S. W. 273, overruling Blackwell v. Barnett, 52 Tex. 326. Again, in California, it has been held that, although the lien of a mortgage is extinguished by the barring of the debt by the statute of limita......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...the right of action on the debt secured thereby is barred. Fievel v. Zuber, 67 Tex. 275 (3 S.W. 273), overruling Blackwell v. Barnett, 52 Tex. 326. Again, in California, it has been held that, although the lien of a mortgage is extinguished by the barring of the debt by the statute of limit......
  • Wilson v. Alexander, No. 12667.
    • United States
    • Court of Appeals of Texas
    • 25 Abril 1932
    ...title. At most it can operate only as a lien. See Wright v. Henderson, 12 Tex. 43; McLane v. Paschal, 47 Tex. 365; Blackwell v. Barnett, 52 Tex. 326. Section 50 of article 16 of our State Constitution provides that: "* * * No mortgage, trust deed, or other lien on the homestead shall ever b......
  • In re Hasie, 933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 5 Junio 1913
    ...The creditor, therefore, may elect to proceed to enforce his lien under the power to sell or foreclosure by suit. Blackwell v. Barnett, 52 Tex. 326; Morrison v. Bean, 15 Tex. 269. The power to sell by a trustee is also revocable. It is revoked ipso facto by the death of the grantor, and is ......
  • Request a trial to view additional results
14 cases
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...the right of action on the debt secured thereby is barred. Fievel v. Zuber, 67 Tex. 43, 3 S. W. 273, overruling Blackwell v. Barnett, 52 Tex. 326. Again, in California, it has been held that, although the lien of a mortgage is extinguished by the barring of the debt by the statute of limita......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...the right of action on the debt secured thereby is barred. Fievel v. Zuber, 67 Tex. 275 (3 S.W. 273), overruling Blackwell v. Barnett, 52 Tex. 326. Again, in California, it has been held that, although the lien of a mortgage is extinguished by the barring of the debt by the statute of limit......
  • Wilson v. Alexander, No. 12667.
    • United States
    • Court of Appeals of Texas
    • 25 Abril 1932
    ...title. At most it can operate only as a lien. See Wright v. Henderson, 12 Tex. 43; McLane v. Paschal, 47 Tex. 365; Blackwell v. Barnett, 52 Tex. 326. Section 50 of article 16 of our State Constitution provides that: "* * * No mortgage, trust deed, or other lien on the homestead shall ever b......
  • In re Hasie, 933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 5 Junio 1913
    ...The creditor, therefore, may elect to proceed to enforce his lien under the power to sell or foreclosure by suit. Blackwell v. Barnett, 52 Tex. 326; Morrison v. Bean, 15 Tex. 269. The power to sell by a trustee is also revocable. It is revoked ipso facto by the death of the grantor, and is ......
  • Request a trial to view additional results

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